CONCURRING OPINION OF
MR. CHIEF JUSTICE HERNÁNDEZ AND MR. JUSTICE ALDREY.The plaintiff, Francisco Buso Pérez, in his own right and in behalf of several minor brothers brought a suit for damages in the District Court of Humacao against Gil Martínez Acha-landavaso, the ground of action being that their father, Francisco Buso Cabrera, had purchased from Francisco Buso Baster a farm consisting of two parcels one of which had an area of 15 cuerdas which on April 19, 1902, he sold to the other defendant, the discovery having been made afterwards that instead of the 15 mierdas recited in the deed the property contained 125 cuerdas; that the defendant, Martínez Acha-landavaso, proceeded to establish a dominion title to the surplus of 110 cuerdas and had it recorded in the registry of property, the claim being for the damages suffered by the plaintiffs for the loss of the land over and- above the 15 cuerdas which the defendant, Martínez Achalandavaso, had appropriated to himself. .
The defendant demurred to the complaint averring that it did not allege facts sufficient to constitute a cause of action and that the action had prescribed. The court below rendered judgment on November 1, 1911, sustaining the demurrer on the ground last mentioned and dismissing the complaint,' and it is from that judgment that the plaintiffs have taken this appeal.
The complaint shows that in 1893 Francisco Buso Cabrera, father of the plaintiffs, purchased from his father, Francisco Buso Baster, the estate known as “Las Puentes,” consisting of two tracts, giving a description by metes and bounds of the tract of 15 cuerdas involved in this action and of the other *1000tract wMoh is The object of the contract, the boundaries mentioned being rather different from those appearing in the registry of property. Brisó Cabrera failed to have a survey made of the property to ascertain whether the area of the estate was even approximately correct, and Buso Baster continued in charge of its management when in 1902 Buso Cabrera segregated the parcel of 15 cuerdas and conveyed it to the defendant, Martinez Achalandavaso, effecting the sale for the fixed price of $2,600 and with the same erroneous boundaries as when he had purchased it.
We already have said on November 18 last in the decision of another case in which the same plaintiffs asked for the nullity of said sale to Martinez Achalandavaso, based among other reasons upon the fact that an error had been committed in the area of the property, that according to section 1374 of the Civil Code in force, corresponding to section 1471 of the former code, when the sale of real property is made for a fixed price, as was the case here, and not for a unit of measure or number, the vendor is not entitled to the excess in area which the property may later be found to contain.
Therefore, inasmuch as the father of the plaintiffs effected the sale for a fixed price the plaintiffs are not entitled to the excess in the area subsequently discovered because the law gives it to the vendee, and for that reason they have no right of action to recover damages for that excess; this being the ease it would be idle to discuss the plea of prescription entered.
It is evident that the complaint does not allege facts sufficient to constitute a cause of action, hence the demurrer filed by the defendant should be sustained and the complaint dismissed.